In the critical last two formal conclusions of its July 8, 1996
nuclear weapons advisory opinion, the International Court of Justice held as follows:

[Para. 105(2)]E. By seven votes to seven, by the Presidents casting vote,

It follows from the above-mentioned requirements that the threat or use of nuclear
weapons would generally be contrary to the rules of international law applicable in armed
conflict, and in particular the principles and rules of humanitarian law;

However, in view of the current state of international law, and of the elements of fact
at its disposal, the Court cannot conclude definitively whether the threat or use of
nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake;

There exists an obligation to pursue in good faith and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict and effective
international control.

In his seminal magisterial dissenting opinion of nearly 100 pages, Judge Weeramantry
praised the many positive contributions of the Court's opinion, including its holding that
threat or use of nuclear weapons is subject to the requirements of humanitarian and
environment law, and its statement of the nuclear disarmament obligation in paragraph
2(F). But he firmly rejected the Court's equivocation regarding an extreme circumstance of
self-defense involving the very survival of a state in paragraph 2(E). He stated at the
outset of his dissent:

My considered opinion is that the use or threat of use of nuclear weapons is illegal in
any circumstances whatsoever. It violates the fundamental principles of
international law, and represents the very negation of the humanitarian concerns which
underlie the structure of humanitarian law. It offends conventional law and, in
particular, the Geneva Gas Protocol of 1925 [prohibiting the use of poisonous gases and
analogous materials], and Article 23(a) of the Hague Regulations of 1907 [prohibiting the
infliction of unnecessary suffering]. It

contradicts the fundamental principle of the dignity and worth of the human person on
which all law depends. It endangers the human environment in a manner which threatens the
entirety of life on the planet.

With regard to self-defense, Judge Weeramantry explained that the "undoubted right
of the state that is attacked to use all the weaponry available to it for the purpose of
repulsing the aggressor holds only so long as such weapons do not violate the
fundamental rules of warfare." "Once the domain of force is entered
the humanitarian laws of war take over and govern all who participate, assailant and
victim alike."

The supremacy of humanitarian law applies as well, Judge Weeramantry emphasized, to the
threat inherent in deterrence justified as a system of international security:

The threat of use of a weapon which contravenes the humanitarian laws of war does not
cease to contravene those laws of war merely because the overwhelming terror it inspires
has the psychological effect of deterring opponents. This Court cannot endorse a pattern
of security that rests upon terror. In the dramatic language of Winston Churchill,
speaking to the House of Commons in 1955, we would then have a situation where,
"Safety will be the sturdy child of terror and survival the twin brother of
annihilation." A global regime which makes safety the result of terror and can speak
of survival and annihilation as twin alternatives makes peace and the human future
dependent upon terror. This is not a basis for world order which this Court can endorse.
This Court is committed to uphold the rule of law, not the rule of force or terror, and
the humanitarian principles of the laws of war are a vital part of the international rule
of law which this Court is charged to administer.

Judge Weeramantrys dissent deserves to be widely circulated as a primer on the
illegality of nuclear weapons. Replete with citations from the literature and
jurisprudence of many cultures, he comprehensively discussed the facts and the law
rendering nuclear weapons illegal in all aspects, patiently and convincingly rebutting
every argument advanced by the nuclear weapon states. Addressing the argument that
"collateral damage" caused by nuclear weapons targeted against military
objectives is not prohibited, Judge Weeramantry stated that those who use nuclear weapons
"cannot in any coherent legal system avoid legal responsibility" for the
consequences, "any less than a man careering in a motor vehicle at a hundred and
fifty kilometres per hour through a crowded market can avoid responsibility for the
resulting deaths on the ground that he did not intend to kill the particular persons who
died." While regretting that the Courts opinion did not go the last mile, Judge
Weeramantry began by stating that it "contains positive pronouncements of significant
value" which "take the law far on the road towards total prohibition." If
the history of law is the history of the progression from dissent to norm, Judge
Weeramantrys opinion could be a harbinger of things to come.